Case Note: Human Rights Challenges and Adequacy of State Responses to Natural Disaster

The extent of the relevance for environmental protection purposes of notions of human rights, particularly as conceived under the European Convention,1 and as further elaborated under UK law within the Human Rights Act 1998, remains contested territory. For instance, rights formulations tend to reflect those manifold anthropocentric interests which in their traditional exercise only exceptionally pay regard to any wider needs of ecological justice. From value-based perspectives, human aspirations, investment expectations, and even political timelines, remain stubbornly short-term. It can be further argued that, instrumentally, in the context especially of resolving environmental disputes through challenges of a fundamentally public law character, recourse to the Convention is inappropriate given the need to engage collective rather than individual interests.

Whilst the potential for more effective pursuit of environmental objectives through human rights claims remains uncertain, therefore, it is hard to argue that rights, as expressed under the terms of the Convention, offer more than an awkward fit with environmental interests. Indeed, those assertions of rights relating to a healthy environment as have arisen in the Convention context have increasingly been met by steadfast judicial restraint, on the part of both Strasbourg and the UK's own domestic courts.2 It can be argued that this merely reflects those established, liberal judicial values, perhaps especially in the common law world, that have persistently resisted the development of a coherent environmental jurisprudence.3 In any event, in default of attempts at reformulation of statutory rights,4 the Convention's contribution in the environmental sphere has appeared likely to remain tangential, and seemed in most circumstances likely to founder in the face of deference to the exercise of discretionary areas of judgment by administrative authority

Nevertheless the Convention does retain a persistent presence in environmental law discourse, and whilst it appears that rights claims will often be of marginal influence, particularly where state administrative (or alternatively quasi-judicial) efforts have sought to address perceived threats to the common interest, these latter responses may not necessarily be determinative. This can be seen from a significant European Court of Human Rights (ECHR) decision in Budayeva v Russia.5 In this case the Court had directly to address questions concerning recourse to the Convention in circumstances of allegedly ineffective regulatory performance on the part of the state. The applicants lived in an area which over several decades had suffered from regular, annual mudslides, and these culminated (in 2000) in a week-long series of mudslide events. Consequences were calamitous, including eight deaths, numerous serious injuries, and other health effects, together with the destruction of homes and other property. Although the authorities had responded by providing replacement housing and lump-sum emergency allowances, the disaster appeared to be regarded officially as accidental, and no public investigation, criminal or otherwise, had been activated thereafter. Meanwhile, civil proceedings taken out against the authorities had been dismissed on the basis that local residents had been informed of the risk, and that all reasonable mitigating measures had been taken by the authorities.

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